Prosecution launched against high street retailer for exposing people to asbestos

At Bournemouth Magistrates’ court today the Health and Safety Executive (HSE) initiated criminal proceedings against Marks and Spencer plc and four other companies for asbestos-related breaches during refurbishment work at shops in Reading, Bournemouth and Plymouth where staff and members of the public were exposed to asbestos fibres.

Marks and Spencer plc pleaded not guilty to breaching three counts of section 2(1), relating to their own staff, and three counts of section 3(1), relating to members of the public and other workers, of the Health and Safety at Work etc Act 1974. Each of these charges relates to each of the three stores and date from September 2004 to November 2006.

Styles and Wood Ltd, based in Cheshire, pleaded guilty to contravening sections 2(1) and 3(1) of the Health and Safety at Work etc Act 1974. These charges relate to offences committed between 24 April 2006 and 13 November 2006 at the Marks and Spencer plc store at 12 Broad Street, Reading. The company will be sentenced at Crown Court at a later date.

Willmott Dixon Construction Ltd of Hertfordshire, entered no plea to the allegations of contravening sections 2(1) and 3(1) of the Health and Safety at Work etc Act 1974 between 5 February 2007 and 3 July 2007. These alleged breaches took place at the Marks and Spencer plc store at 23 Commercial Road in Bournemouth.

Manchester-based company PA Realisations Ltd (formally Pectel Ltd), faces allegations of contravening regulation 10 of the Control of Asbestos at Work Regulations 2002 between 24 April 2006 and 12 November 2006, and regulation 15 of the Control of Asbestos at Work Regulations 2002 on dates between 5 May 2006 and 12 November 2006 at the Marks and Spencer plc store in Reading. PA Realisations Ltd was not represented in court today.

A committal hearing date has been set for 2.15pm on Tuesday 9 February 2010 at Bournemouth Magistrates’ Court.

Notes to editors
A fifth company, Clarence Contractors Ltd, was prosecuted and sentenced in relation to asbestos removal. The company, which is in terminal liquidation, was today (12th January 2010) fined £50 for each offence (total £200) and £100 costs. Based in Sheffield, the company pleaded guilty to breaching regulations 10 and 15 of the Control of Asbestos at Work Regulations 2002 for offences committed between September 2004 and September 2006 at Marks and Spencer plc store at 29 Old Town Street, Plymouth. The company also pleaded guilty to contravening regulations 11 and 16 of the Control of Asbestos Regulations 2006 at the Marks and Spencer plc store at 23 Commercial Road in Bournemouth. The offence under regulation 11 took place between 5 February 2007 and 3 July 2007. The offence under regulation 16 occurred between 5 February 2007 and 8 March 2007.
The remaining prosecutions are now a matter for the Court. HSE is unable to comment further.
Section 2(1) of the Health and Safety at Work etc Act 1974 states: It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.
Section 3(1) of the Health and Safety at Work etc Act 1974 states: It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety.
Regulation 10 of the Control of Asbestos at Work Regulations 2002 begins: Every employer shall prevent the exposure of his employees to asbestos so far as is reasonably practicable. For the rest of this regulation please see: https://www.opsi.gov.uk/si/si2002/20022675.htm#10
Regulation 15 of the Control of Asbestos at Work Regulations 2002 states: Every employer shall prevent or, where this is not reasonably practicable, reduce to the lowest level reasonably practicable, the spread of asbestos from any place where work under his control is carried out.
Regulation 11 of the Control of Asbestos Regulations 2006 begins: Every employer shall prevent the exposure of his employees to asbestos so far as is reasonably practicable; [For the rest of this regulation please see: https://www.opsi.gov.uk/si/si2006/20062739.htm#11
Regulation 16 of the Control of Asbestos Regulations 2006 states: Every employer shall prevent or, where this is not reasonably practicable, reduce to the lowest level reasonably practicable the spread of asbestos from any place where work under his control is carried out.
You are advised to check the time and date of the hearing with the Court nearer the time to ensure that the case has not been put back.
Now that criminal proceedings have commenced your attention is drawn to the fact that the provisions of the Contempt of Court Act apply to this matter.

Agencies failing to protect asbestos-removal workers

A government watchdog has warned a host of employment agencies after they were found to have advertised for asbestos-removal workers without properly checking the health and safety implications of the work
involved.

The Employment Agency Standards (EAS) inspectorate received intelligence that employment agencies were advertising vacancies for asbestos-removal workers without checking if they had the proper HSE licenses. Although no workers had been placed in any roles, the regulator found that the agencies weren’t taking the necessary steps to protect them from risk.

Of the 12 agencies investigated, 11 were found to be in breach of the Conduct of Employment Agencies and Employment Businesses Regulations 2003. A total of 57 infringements of the law were identified, including:

a failure to explore the health and safety implications of the advertised work with the client business (hirer);
a failure to check the identity, qualifications, experience and training of the worker they intended to post in a role; and
a failure to have authority from hiring companies to advertise the positions.
Warning letters were subsequently issued to 11 agencies outlining that if they did not comply with the Regulations, then they could face criminal proceedings, or a possible ban from trading of up to 10 years.

The Government is currently running advertisements on hoardings, buses and phone boxes to encourage agency workers to seek advice about their workplace rights and report abuses through a confidential Pay and Work Rights helpline.

Employment relations minister Lord Young said: “The Government has done a lot to improve rights at work but it’s also essential to make sure these rights are properly enforced. A simple system for reporting abuses and giving advice and information to employers and workers is a critical part of that.

“The recession should not become an excuse to deny people their basic rights at work.”

The warnings came in the same week that the HSE launched its Hidden Killer campaign. Aimed at tradesmen, the campaign is seeking to raise awareness of asbestos among this high-risk group.

Steve Coldrick, the HSE’s asbestos programme director, said: “Asbestos is a killer. It claims about 4000 lives a year – more than die in road accidents. It should be of no concern to the general public if it remains undisturbed and in good condition, but the same cannot be said for tradespeople who may come across it in their work.

“While they need to take responsibility for their own health and safety, it is imperative that this is matched with a commitment by their employer to do the same.”

TUC general secretary Brendan Barber said: “We welcome this government warning. It’s vital agencies and employers take the health and safety of agency workers seriously.

“Asbestos has posed a long-running threat to generations of British workers, many of whom have faced an early death because they were not told about the hidden killer in their workplaces.”

The Department for Business, Innovation and Skills was not able to disclose the names of the agencies when contacted by SHP.

Insurers could appeal after asbestos-law challenge fails

A group of insurers has failed in its bid to overturn a law in Scotland
that allows people with asbestos-related pleural plaques to claim for
compensation.

Aviva, AXA, RSA, and Zurich brought a judicial review against the Damages (Asbestos-related Conditions) (Scotland) Act 2009, which made pleural plaques a compensatable condition in Scotland, reversing a decision by the House of Lords in October 2007.

Pleural plaques – areas of fibrosis that can develop on the inner surface of the ribcage and diaphragm as a result of exposure to asbestos – are asymptomatic, causing no pain or discomfort. The insurers challenged the lawfulness of the Act, arguing that it contravened the established need for real, or material ‘damage’ to have occurred before a claim of negligence can succeed.

In a ruling on 8 January, Lord Emslie explained: “In this respect, according to the petitioners, the Scottish Parliament in passing the Act has contrived to do the opposite of many foreign legislatures which, faced with an intolerable escalation of claims by ‘the worried well’, have brought in measures to negate the actionability of pleural plaques. And, it is said, the Parliament has done so by means of a blatant controversion of established – and indeed, agreed – medical fact.”

The insurers claim that the decision to allow pleural-plaques sufferers a right to compensation unfairly burdens them with additional liabilities under indemnity insurance policies, which could potentially run into billions of pounds.

The judge conceded: “There is clearly room for differences of opinion as to whether the Parliament was right to legislate in the way it did, and it remains to be seen whether the 2009 Act will prove to have adverse legal, or political consequences in years to come.” Nevertheless, he rejected the insurers’ challenge, concluding that their complaints did not “come anywhere near the standard of ‘irrationality’, which would be necessary in order to invalidate a primary Act of the Scottish Parliament”.

Reacting to the judgement, Nick Starling, director of general insurance and health at the Association of British Insurers, said: “Insurers brought the review on the grounds that the Damages Act is fundamentally flawed, as it ignores overwhelming medical evidence that plaques are symptomless, and the well-established legal principle that compensation is payable only when there are physical symptoms.

“Insurers will now be considering carefully this judgement, and are seriously looking at the grounds for an appeal against it. This is not the end of the road.”

Asbestos action groups welcomed the decision. Harry McCluskey, chair of Clydeside Action on Asbestos, said: “It is absolute rubbish to say that pleural plaques don’t affect victims. They’re as dangerous as any other asbestos-related disease. Most sufferers have some form of breathlessness, but the biggest strain is the worry of developing fatal conditions like mesothelioma, which happens with frightening regularity.”

Frank Maguire, senior partner of Thompsons Solicitors, who is acting on behalf of pleural-plaques victims, called on the insurance industry to “stop obstructing justice and not to try to put any more barriers in the way of victims seeking compensation”.

He also urged the Westminster Government to enact similar legislation for the rest of the UK, a view echoed by Alan Ritchie, general secretary of UCATT, who said: “The decision to dismiss the judicial review is good news for pleural-plaques sufferers throughout Britain.

“The British government must now move swiftly to restore full compensation to all pleural-plaques sufferers. Pleural-plaques victims must not be trapped in a postcode lottery about whether or not they receive compensation.”

The union believes that the main reason for the Government’s delay in responding to the consultation it carried out in 2008 on compensating pleural-plaques victims is due to Whitehall’s reluctance to make funds available to pay compensation to its current and former staff who have developed, or will develop, the condition. Most of the Government’s liabilities relate to former nationalised heavy industries, such as shipbuilding.

UCATT also claims to have seen official documentation estimating the Government’s annual liability for pleural plaques could be as low as £10 million, far lower than previous claims of £35m, but the union was reticent to discuss the full nature of the papers when contacted by SHP.

But speaking in the Commons on 5 January, Justice minister Jack Straw hinted at the complexities of the situation, telling MPs: “This is a difficult issue and involves potential expenditure by a number of departments, but consideration by ministers continues.”

A Ministry of Justice spokesperson rebuffed the union’s claims, saying: “We do not recognise the figures quoted by UCATT. The Government is still considering the issue of compensation for pleural plaques in England and Wales and how people who have been exposed to asbestos can be supported much more widely, and will make an announcement as soon as possible.”

Alan Ritchie, however, described the Government’s attitude on pleural plaques as “deeply frustrating” and accused it of being “paralysed on the issue and unable to make a decision”.

Development company fined £5,500 following asbestos contraventions

A development company that exposed both employees and others to the risks of asbestos during renovation work has been prosecuted by the Health and Safety Executive (HSE).

Stonehouse Design and Build Limited, based in Houndiscombe Road, Mutley, Plymouth, Devon, was charged with health and safety breaches under the Control of Asbestos at Work Regulations 2002, following renovation work at the former Sharksfin Hotel at The Quay in Mevagissey, Cornwall, between December 2005 and July 2006.

The company was charged with breaching Regulation 15 (relating to the spread of asbestos) and Regulation 16 (1) (a) (relating to the failure to keep the site clean). Having pleaded guilty to both charges, Stonehouse Design and Build Ltd was fined £2,700 for the each of the breaches then ordered to pay part costs of £8,267 at Bodmin Magistrates Courts yesterday (8 December 2009).

Stonehouse Design and Build Limited bought the former hotel site in order to convert the building into apartments. During the course of the renovation work, asbestos was disturbed and HSE was notified in confidence that the hazardous material was not being removed under appropriate controlled conditions. This included the illegal disposal of asbestos materials alongside general waste, designated for general landfill waste. Work at the site was halted by HSE inspectors in July 2009 and the asbestos was removed under licensed conditions then the site decontaminated by a specialist team.

Speaking after the hearing, HSE Inspector, Martin Lee, said:

“We have just been running an asbestos awareness campaign called ‘The Hidden Killer’ precisely to highlight the dangers of this potentially lethal material to tradesmen such as those working at the former Sharksfin Hotel site.

“The dangers of exposure to asbestos cannot be underestimated. In Cornwall alone, 250 men died from mesothelioma caused by asbestos between 1981 and 2005 (latest figures available). This figure will continue to rise unless we can educate tradesmen about the dangers of asbestos and why this is relevant to them.

“We want them to change the way they work so that they don’t put their lives at risk. The most simple, but important advice is, if any worker or developer is not 100 per cent certain that there is no asbestos on site, then work should not begin before the facts are known. It is not worth the long-term risk.”

Notes to editors
1.Stonehouse Design and Build Limited pleaded guilty to breaching Regulation 15 of the Control of Asbestos at Work Regulations 2002 in that: ‘it failed to prevent or, where this was not reasonably practicable, reduce to the lowest level reasonably practicable, the spread of asbestos from any place where work under its control was being carried out namely at the former Sharksfin Hotel…’
2.Stonehouse Design and Build Limited pleaded guilty to breaching Regulation 16 (1) (a) of the Control of Asbestos at Work Regulations 2002 in that: it failed to ensure that the premises, namely the former Sharksfin Hotel, or those parts of the premises where the work was being carried out and the plant used in connection with that work were kept in a clean state…’

Companies warned to stick to the rules when removing asbestos

A Cradley company

has been convicted of breaching health and safety regulations after failing to follow proper procedures for removing asbestos.

The Health and Safety Executive (HSE) prosecuted PW Mills (Cradley) Ltd of Bassett Road, Halesowen over the failings. The company pleaded guilty earlier this year at Walsall Magistrates Court to two counts of breaching regulation 9(1) and one count of breaching regulation 17(b) of the Control of Asbestos Regulations 2006. PW Mills (Cradley) Ltd also admitted breaching Section 3(1) of the Health and Safety at Work etc Act 1974.

The manager of the company at the time, Roy Anthony Halden of Hillary Crest, Rugeley, Staffordshire pleaded guilty to one count of breaching Section 36(1) of the Health and Safety at Work etc Act 1974 at the Wolverhampton Crown Court on Monday 7 December 2009.

The court heard that the company removed asbestos from industrial units in Crescent Works Industrial Park, Darlaston in December 2007 and January 2008, but did not notify HSE of the work which is required by law. Asbestos debris was left in the work area, and the firm sent another team to clean up the site the following month, again without notifying HSE.

HSE investigating Inspector Mike Ford said:

“Asbestos is the single greatest cause of work-related deaths in the UK and regulations around its removal are in place for a reason. HSE must be notified of any asbestos removal work being carried out.

“We will not hesitate to take action against companies and individuals who flout the rules.”

Notes to editors
1.PW Mills (Cradley) Ltd pleaded guilty to the charges on 5 May 2009 and was committed to the Crown Court for sentence but subsequently went into receivership. At the Crown Court the case was allowed to “lie on the file” as there was little prospect of any penalty or costs being paid by the company.
2.Roy Halden received a conditional discharge, with no order for costs.
3.Regulation 9(1) of the Control of Asbestos Regulations 2006 states: “Subject to regulation 3(2), an employer shall not undertake any work with asbestos unless he has notified the appropriate office of the enforcing authority in writing of the particulars specified in Schedule 1 at least 14 days before commencing that work or such shorter time before as the enforcing authority may agree.”.
4.Regulation 17(b) of the Control of Asbestos Regulations 2006 states: “It shall be the duty of every employer to ensure, on completion of works with asbestos, that those parts of the premises where those works with asbestos have been carried out are thoroughly cleaned.”
5.Section 3(1) of the Health and Safety at Work etc Act 1974 states: “It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health and safety.”
6.Section 36(1) of the Health and Safety at Work etc Act 1974 states: “Where the commission by any person of an offence under any of the relevant statutory provisions is due to the act or default of some other person, that other person shall be guilty of the offence, and a person may be charged with and convicted of the offence by virtue of this subsection whether or not proceedings are taken against the first-mentioned person.”

Company fined for asbestos failings

A company has been fined for failing to carry out proper risk assessments for the presence of asbestos before a major office refurbishment in Merthyr Tydfil.

Employees and contractors were put at risk when work started on the refurbishment without an asbestos survey.

Waxport Ltd of Mottingham Road, Edmonton, London pleaded guilty to breaches of Regulation 4(8) and 4(9) of the Control of Asbestos Regulations 2006 at Merthyr Tydfil Magistrates’ Court yesterday. They were fined £1,000 and ordered to pay costs of £8,416.43.

The company, which owned Oldway House, an office block in the centre of Merthyr Tydfil, had previously been issued with advice from a licensed asbestos contractor advising them complete an asbestos survey before carrying out major refurbishment work in the building in April 2007.

Waxport Ltd commissioned another company to carry out the refurbishment work, and advised them that asbestos was no longer present or had been encapsulated in the building. As a result, work commenced and asbestos was disturbed with work only stopping when a site worker identified the substance.

HSE Inspector, Dean Baker, said:

“The dangers of asbestos are very well known, but Waxport Ltd failed to carry out a proper risk assessment putting their own staff, contractors and other people working in the building at risk of being exposed to airborne fibres.

“The company were required to have a comprehensive asbestos management plan in place identifying where asbestos was located but they failed to do this. In this case, an asbestos survey was only carried out after the incident occurred.

“Working on or near damaged asbestos-containing materials or breathing in high levels of asbestos fibres, which may be many hundreds of times that of environmental levels could increase workers’ chances of getting an asbestos-related disease.”

When asbestos fibres are inhaled they can cause serious diseases which are responsible for around 4000 deaths a year. There are four main diseases caused by asbestos: mesothelioma, lung cancer, asbestosis and diffuse pleural thickening (not fatal). Mesothelioma is always fatal, and lung cancer is almost always fatal.

More information on asbestos, including HSE’s Hidden Killer campaign can be found on HSE’s website at https://www.hse.gov.uk/asbestos/index.htm

Real life stories

The stories that speak of the devastating effects of asbestos.

These real life stories are from trades and maintenance workers and their families

who have suffered the devastating effects of mesothelioma, an incurable cancer caused by exposure to asbestos.

www.hse.gov.uk/asbestos/hiddenkiller/real-life-stories.htm

The Hidden Killer – Chris Morgan’s story

Christopher Morgan used to work as a pipe fitter when he came into contact with asbestos – he now has mesothelioma an incurable cancer caused by exposure to the deadly fibres.

In this video, he tells his story.
https://www.hse.gov.uk/press/2009/cmorganshort.htm

Edinburgh council fined £14,000

Edinburgh Council have been fined £14,000

after 14 of its employees, were potentially exposed to asbestos while carrying out refurbishment work.

The workers, including joiners, had been instructed to remove laboratory doors from Castlebrae Community High School back in April 2007 and carry out alterations at the council’s workshop on Murrayburn Road. This involved cutting the doors which disturbed the asbestos core inside.

The council pleaded guilty at Edinburgh Sheriff Court of breaching the Control of Asbestos Regulations 2006, Regulations 4 (9)(c)(i), 6(1), 11(1)(a) and 7(1).

The court heard how the council had failed to keep accurate records of the location and condition of asbestos and did not have suitable procedures in place to inform those working on or near the substance that it was there.

HSE inspector Mike Orr commented after the case:

“The risks from asbestos are well known and it is imperative that precautions to manage those risks are put in place. City of Edinburgh Council should have been well aware of its responsibilities. Its failings are clear.

“Although the council had carried out a survey of the premises which identified the asbestos core in the doors, there was no register on the school site and the summary provided to workers wasn’t sufficient to alert them to the danger.

“The council did not carry out a sufficient risk assessment prior to the work commencing in 2007.

“It is important to stress that many buildings, including schools, contain asbestos. If it remains undisturbed and is in good condition it should not be a cause for concern.

“As this case demonstrates, those most likely to be at risk from asbestos are tradesmen. Every week, 20 tradesmen die from asbestos-related diseases, including mesothelioma – an incurable cancer.

“This case should serve as a warning to property owners or those who manage buildings to ensure they have robust arrangements in place to manage the risks from asbestos.”

HSE recently re-launched its ‘Asbestos: the hidden killer’ campaign which aims to raise awareness of the risks of asbestos amongst tradesmen. For more information visit www.hse.gov.uk/hiddenkiller